[HISTORY: Adopted by the Town Board of the
Town of Van Buren as indicated in article histories. Amendments noted
where applicable.]
[Adopted 1-15-2008 by L.L. No. 1-2008]
A.
The Town Board hereby finds and determines that in
order to protect and safeguard the Town of Van Buren, its residents
and their property with respect to certain land developments within
the Town, all buildings, highways, drainage facilities sanitary sewer
facilities, other utilities and parks within said developments should
be designed and constructed in a competent and workmanlike manner
and in conformity with all applicable governmental codes, rules and
regulations and dedicated and conveyed to the Town in a legally sufficient
manner; that in order to assure the foregoing, it is essential for
the Town to have competent engineers retained by the Town to review
and approve plans and designs, make recommendations to the Town Board
and Planning Board, inspect the construction of highways, drainage,
sewer and other facilities and parks to be dedicated to the Town and
to recommend their acceptance by the Town and to have competent attorneys
retained by the Town to negotiate and draft appropriate agreements
with developers, to obtain, review and approve necessary securities,
insurance and other legal documents, to review proposed deeds and
easements to assure that the Town is obtaining good and proper title
and to generally represent the Town with respect to legal disputes
and issues with respect to developments; and that the cost of retaining
such competent engineers and attorneys should ultimately be paid by
those who seek to profit from such developments rather than from general
Town funds which are raised by assessments paid by taxpayers of the
Town.
B.
This article is enacted under the authority of Municipal Home Rule Law § 10, Subdivision 1(ii)a(12) and d(3), and Municipal Home Rule Law § 22. To the extent that Town Law §§ 274-a, 276 and 277 do not authorize the Town Board or Town Planning Board to require the reimbursement to the Town of legal and engineering expenses incurred by the Town in connection with the review and consideration of applications for subdivision approval and for the approval, amendment or extension of planned districts under Chapter 200, Zoning, it is the expressed intent of the Town Board to change and supersede such statutes. More particularly, such statutes do not authorize the deferral or withholding of such approvals in the event that such expenses are not paid to the Town. It is the expressed intent of the Town Board to change and supersede Town Law §§ 274-a, 276 and 277 to empower the Town to require such payment as a condition to such approvals.
As used in this article, the following terms
shall have the meanings indicated:
Any person, firm, partnership, association, corporation,
company or organization of any kind who or which requests the Town
or its Planning Board or Town Board to approve a development.
Any person, firm, partnership, association, corporation,
company or organization of any kind who or which constructs or proposes
to construct one or more highways, drainage facilities, utilities
or parks within or in conjunction with a development and to convey
or dedicate the same to the Town.
Includes a subdivision or a planned district.
All surface water drainage facilities, including but not
limited to detention and retention basins, storm sewers and their
appurtenances, drainage swales and ditches and any easements through
or over which said facilities may be constructed or installed in or
in connection with a development.
Includes a street, avenue, road, square, place, alley, lane,
boulevard, concourse, parkway driveway, overpass and underpass and
also includes all items appurtenant thereto, including but not limited
to bridges, culverts, ditches, shoulders and sidewalks in or in connection
with a development.
An area of land located within a development which is open
to the public and devoted to active or passive recreation.
A planned unit development district, planned office development district, planned commercial development district or planned industrial district established under §§ 200-33 through 200-36 of Chapter 200, Zoning, including any site plan review pursuant to § 200-79 of Chapter 200, Zoning (or any successor provision), or environmental review pursuant to the New York State Environmental Quality Review Act.[1]
A subdivision of land pursuant to Chapter 175, Subdivision of Land, and the land subdivision regulations of the Town, including any site plan review pursuant to § 200-79 of Chapter 200, Zoning, of the Town (or any successor provision) or environmental review pursuant to the New York State Environmental Quality Review Act.
The Town of Van Buren.
All water, sanitary sewer, gas, electric, telephone and cable
television facilities and any easements through or over which said
facilities may be constructed or installed in or in connection with
a development.
[1]
Editor's Note: See Environmental Conservation
Law, Art. 8.
A.
Subdivisions.
(1)
The applicant for approval of a subdivision in the
Town shall reimburse the Town for all reasonable and necessary legal
and engineering expenses incurred by the Town in connection with the
review and consideration of such subdivision.
(2)
A developer who constructs or proposes to construct
one or more highways, drainage facilities, utilities or parks within
or in conjunction with an approved subdivision in the Town shall reimburse
the Town for all reasonable and necessary legal and engineering expenses
incurred by the Town in connection with the inspection and acceptance
by the Town of such highways, drainage facilities, utilities and parks
and the dedication of the same to the Town.
B.
Planned districts.
(1)
An applicant for the approval, amendment or extension
of a planned district in the Town shall reimburse the Town for all
reasonable and necessary legal and engineering expenses incurred by
the Town in connection with the review and consideration of said application.
(2)
A developer who constructs or proposes to construct
one or more buildings, highways, drainage facilities, utilities or
parks within or in conjunction with a planned district in the Town
shall reimburse the Town for all reasonable and necessary legal and
engineering expenses incurred by the Town in connection with the granting
of any building permit and in connection with the inspection and acceptance
by the Town of such highways, drainage facilities, utilities and parks
and the dedication of the same to the Town.
A.
No deposits for Town costs for engineering/legal professional
services shall be required for applications concerning development
of owner-occupied single- or two-family residences located within
existing lots within a residential district.
B.
Notwithstanding anything to the contrary contained
in this article, an applicant or developer shall not be required to
reimburse the Town for legal or engineering fees incurred by the Town
for services performed in connection with matters as to which the
Town Supervisor determines the applicant or developer had no responsibility,
direct or otherwise.
A.
Simultaneously with the filing of an application for approval of a development and prior to the commencement of any construction of buildings, highways, drainage facilities, utilities or parks therein, the applicant or developer, as the case may be, shall deposit with the Town Supervisor a sum of money, as determined in § 107-6 of this article, which sum shall be used to pay the costs incurred by the Town for engineering and legal services as described in § 107-3 of this article.
B.
Upon receipt of such sums, the Town Supervisor shall
cause such moneys to be placed in a separate account in the name of
the Town and shall keep a separate record of all such moneys so deposited
and the name of the applicant or developer and project for which such
sums were deposited.
C.
Upon receipt and approval by the Town Supervisor of
itemized vouchers from an engineer and/or attorney for services rendered
on behalf of the Town pertaining to the development, the Town Supervisor
shall cause such vouchers to be paid out of the moneys so deposited
and shall debit the separate record of such account accordingly. The
Town shall furnish copies of such vouchers to the applicant or developer
upon request.
D.
The Town Supervisor shall review and audit all such
vouchers and shall approve payment of only such engineering and legal
fees as are reasonable in amount and necessarily incurred by the Town
in connection with the review, consideration and approval of developments
and the inspection and acceptance of highways, drainage facilities,
utilities and parks within or in conjunction with such developments.
For purposes of the foregoing, a fee or part thereof is reasonable
in amount if it bears a reasonable relationship to the average charge
by engineers or attorneys to the Town for services performed in connection
with the approval or construction of a similar development, and in
this regard the Town Supervisor may take into consideration the size,
type and number of buildings to be constructed, the amount of time
to complete the development, the topography of the land on which such
development is located, soil conditions, surface water, drainage conditions,
the nature and extent of highways, drainage facilities, utilities
and parks to be constructed and any special conditions or considerations
as the Town Supervisor may deem relevant, and a fee or part thereof
is necessarily incurred if it was charged by the engineer or attorney
for a service which was rendered in order to protect or promote the
health, safety or other vital interests of the residents of the Town,
protect public or private property from damage from uncontrolled surface
water runoff and other factors, assure the proper and timely construction
of highways, drainage facilities, utilities and parks and protect
the legal interests of the Town, including receipt by the Town of
good and proper title to dedicated highways and other facilities and
the avoidance of claims and liability and such other interests as
the Town Supervisor may deem relevant.
E.
If at any time during or after the processing of such
application or the construction, inspection or acceptance of buildings,
highways, drainage facilities, utilities or parks there shall be insufficient
moneys on hand to the credit of such applicant or developer to pay
the approved vouchers in full, or if it shall reasonably appear to
the Town Supervisor that such moneys will be insufficient to meet
vouchers yet to be submitted, the Town Supervisor shall cause the
applicant or developer to deposit additional sums as the Supervisor
deems necessary or advisable in order to meet such expenses or anticipated
expenses.
F.
In the event that the applicant or developer fails
to deposit such funds or such additional funds, the Town Supervisor
shall notify, as applicable, the Chairman of the Planning Board, the
Town Board and/or the Town’s Code Enforcement Officer of such
failure, and any review, approval, building permit or certificates
of occupancy may be withheld by the appropriate board, officer or
employee of the Town until such moneys are deposited. In addition,
when an applicant or developer fails to deposit such additional funds,
these unpaid amounts shall constitute a lien and charge on any real
property owned by the applicant or developer located within the Town
and shall be collected in the same manner and at the same time as
other Town charges.
[Amended 6-3-2008 by L.L. No. 7-2008]
G.
After final approval, acceptance and/or the issuance
of a certificate of occupancy relating to any specific development,
and after payment of all approved vouchers submitted regarding such
development, any sums remaining on account to the credit of such applicant
or developer shall be returned to such applicant or developer.
H.
This article shall apply to any applications for approval
of a development filed with the Town on or after the effective date
of this article, as well as any applications for approval of a development
filed with the Town prior to the effective date of this article to
the extent that there are any unpaid amounts still due and owing to
the Town by an applicant or developer.
[Added 6-3-2008 by L.L. No. 7-2008]
The amount of the initial deposit for the various
developments covered by this article shall be as set forth in a schedule
of deposits established from time to time by resolution of the Town
Board. Said schedule shall remain in effect and shall apply to all
applicants and developers until amended or revised by subsequent resolution.
The deposits required by this article shall
be in addition to any application fees as may be required by other
laws, rules, regulations or ordinances of the Town and shall not be
used to offset the Town's general expenses of legal and engineering
services for the several boards of the Town nor its general administration
expenses.
If any clause, sentence, paragraph, subdivision,
section or part of this article shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair or invalidate the remainder thereof but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such
judgment is rendered.
This article shall take effect immediately upon
filing in the office of the Secretary of State.
[Adopted 5-6-2008 by L.L. No. 6-2008]
A.
One of the most important benefits received by residents
of the Town of Van Buren from their government is the protection of
property values and way of life safeguarded by the Town's zoning and
planning laws. The Town has expended substantial public funds developing,
nurturing and maintaining its Comprehensive Land Use Plan. Every violation
of these laws undermines the benefit of these laws to all citizens
and corrupts the integrity of the plan as a whole.
B.
The criminal enforcement process is an ineffective
tool to compel compliance with these laws because it is designed for
punishment, not compliance, and the penalties associated therewith
are insufficient to modify behavior.
C.
The injunctive power of the New York Court System,
on the other hand, is designed to compel compliance but is very expensive
to the municipal taxpayer. This article is designed to provide authorization
for the Town of Van Buren to recover its reasonable attorney fees
from a defendant who is adjudged by the court in a civil proceeding
of having violated the Town's zoning and/or planning laws.
[Amended 6-3-2008 by L.L. No. 7-2008]
This article shall be applicable to any civil
proceeding, whether in the nature of an action for injunction or otherwise,
brought by the Town of Van Buren or any of its boards, departments,
agencies or divisions to enforce, compel compliance with or enjoin
a violation of Chapter 165, Zoning, Chapter 144, Subdivision of Land,
or the Town's junk vehicle law, site plan law or other local law or
ordinance in which the Town of Van Buren or its boards, departments,
agencies or divisions are the prevailing party. This article shall
be applicable to any such proceedings commenced on or after the effective
date of this article, as well as to any such proceedings commenced
prior to the effective date of this article, provided that no final
judgment or determination has been issued in such proceeding prior
to the effective date of this article.
[Amended 6-3-2008 by L.L. No. 7-2008]
In any civil proceeding for an injunction or
other relief in which the Town of Van Buren, its boards, departments
agencies or divisions shall prevail, it shall be entitled to recover
from the defendant, defendants or both all of its reasonable attorney
fees, costs and disbursement. Such fees, costs and disbursements shall
constitute a lien and charge on any real property owned by the defendant,
defendants or both which was the situs of the violation(s) litigated
in the underlying civil proceeding, and shall be collected in the
same manner and at the same time as other Town charges.
By this article, the Town of Van Buren intends
to exercise the powers granted to it by the Municipal Home Rule Law
to the maximum extent possible, and it is specifically intended that
this article shall supersede all other local or state laws of general
application inconsistent herewith, except that this article shall
not be construed so as to be inconsistent with or to deprive any member
of the judiciary of the State of New York of any power granted or
reserved to such Judge.
